McCullick v. Williams

          Hon. David R. Grand, Judge

          OPINION AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND DIRECTING RESPONDENT TO FILE A RESPONSE TO THE PETITION

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

         On February 5, 2019, Michigan prisoner Jim Williams, Jr., filed a petition for writ of habeas corpus, challenging his jury trial convictions in Wayne Circuit Court of assault with intent to do great bodily harm, Mich. Comp. Law § 750.84, and other offenses related to a shooting that occurred after an altercation. Petitioner challenges the effectiveness of trial counsel and the improper habitual-offender enhancement for his sentence. ECF No. 1 at PageID.7-10. Respondent Mark McCullick filed a motion to dismiss claiming Petitioner's sentencing claim is unexhausted, resulting in a “mixed” petition. ECF No. 7.

         As explained below, Petitioner has not exhausted his state court remedies as to his sentencing claim. However, a return to the state courts would be futile. Therefore, Respondent's motion to dismiss the petition will be denied without prejudice. Respondent will be directed to respond to the petition.

         I.

         The Michigan Court of Appeals summarized the facts of Petitioner's case as follows:

According to the evidence introduced at trial, defendant had an altercation with Demetrius Beckum at a liquor store on April 30, 2015. Later that day, defendant fired several shots at Beckum while Beckum was speaking to Verdena Jamison on Jamison's front porch. Beckum was shot in the foot. Defendant then fled the scene in a blue-green van. Beckum identified defendant as the shooter, and Jamison's neighbor, Jeffery Woodford, heard the shots and saw defendant driving away in the blue-green van.

People v. Williams, No. 335608, 2018 WL 1767288, at *1 (Mich. Ct. App. Apr. 12, 2018), leave to appeal denied, 503 Mich. 875 (2018). Petitioner was convicted of assault with intent to do great bodily harm, Mich. Comp. Law § 750.84; discharging a firearm at a building causing injury, § 750.234b(3); carrying a dangerous weapon with unlawful intent, § 750.226; felon in possession of a firearm, § 750.224f; carrying a concealed weapon (CCW), § 750.227; and possession of a firearm during the commission of a felony, second offense, § 750.227b. Id. He was sentenced to a term of incarceration of five to ten years for the assault charge; six years, eleven months to fifteen years on the firearm discharge count; a determinate five-year sentence for the second felony-firearm offense; and twenty-one months to five years on the remaining charges. See Mich. Ct. of App. record at 14, ECF No. 8-16 at PageID.965 (Judgment of Sentence, October 13, 2016). Each of the sentences were imposed concurrently except the sentence for the assault conviction and felony-firearm conviction were imposed consecutively. Id.

         Petitioner appealed by right. He raised two claims: ineffective assistance of trial counsel and improper habitual-offender sentence enhancement, where no notice was provided as required by statute. See id. at 38, PageID.989.

         While his direct appeal was pending, Petitioner moved for and was granted re-sentencing in the trial court. 7-14-17 Post-Conv'n Hr'g Tr. at 9, ECF 8-14 at PageID.929, 934. He was re-sentenced with no habitual offender enhancement. Mich. Ct. of App. record at 142, ECF No. 8-16 at PageID.1092-1093. Petitioner's minimum sentence for the assault charge was reduced by seventeen months, to forty-three months; the firearm discharge count minimum was reduced eighteen months to five years, five months, and the sentence on the felony-firearm charge was reduced to 60 months. Id. at 141, PageID.1092 (Amended Judgment of Re-Sentence, Sept. 19, 2017). All sentences are still concurrent, with the exception of the assault and felony-firearm convictions which are still consecutive.

         Petitioner's re-sentencing without the habitual-offender enhancement mooted his original sentencing issue on direct appeal. Accordingly, through his appellate attorney, Petitioner filed an amended brief in the state court of appeals, which revised the sentencing issue as follows:

Did the trial court err in imposing a sentence which violates the principle of proportionality as set forth by People v. Milbourn[, 435 Mich. 630 (1990)] and is unreasonable in violation [of] People v. Lockridge[, 498 Mich. 358 (2015)], thereby entitling the Defendant-Appellant to re-sentencing?

Id. at 120, PageID.1071.

         The state court of appeals found Petitioner's first claim, ineffective assistance of trial counsel, to be “without merit.” Williams, 2018 WL 1767288, at *3. It then addressed and rejected Petitioner's amended sentencing issue, his “unreasonable and disproportionate” sentence. Id. The court held that “[a] sentence within the applicable sentencing guidelines range need not be reviewed for reasonableness and . . . . a sentence within the advisory guidelines range is presumptively proportionate . . .” Id. (citations and internal quotation marks omitted). The opinion acknowledged ...